The requirement to determine if the breach of election rules materially affected the election outcome to invalidate the election.

Wallace, J.

1. Three main points have been argued on this petition, (1) whether the statutory rules for the election of the Chairman were broken, (2) whether having found that they were broken the lower court was not bound to find further that that breach had materially affected the result of the election, before it could set aside the election, (3) whether if the court has neglected so to find, this Court can, and, if it can, will, interfere in revision, and in what manner it should so interfere.

2. As to point (1) whether the election rules have been broken, the lower courts finding appears to me to be a finding of fact, which in revision, this Court will not ordinarily disturb. It is pleaded for petitioner that the lower courts finding is vitiated by a fundamental misreading of the rules which are statutory rules, i.e. that it is based on an error of law. Rule IV lays down that "no candidate whose name has been proposed and seconded shall take part in a ballot." It is admitted that petitioner, whose name had been duly proposed and seconded, himself presided at the meeting and conducted the ballot, opened the ballot box, counted the votes and acted as Returning Officer. I am in full agreement with the lower court that this is "taking part in a ballot" and that that phrase is not restricted, as petitioner argues, to the mere act of voting. The rule has clearly been framed to carry out the salutary principle that no man shall be a Judge in his own cause, and that it should not be in the power of one vitally interested in the result to decide on such questions intimately affecting the result, e. g, the validity of a particular vote, as the officer presiding at the ballot has to decide. The English Law on this subject is quite plain, see R. v. Owens (1859) 2E and E 86; R. v. White (1867) 2 QB 557 and other cases cited on page 115 of Volumes III of Rogers on Elections 18th Edition, viz., that candidate is precluded from acting as chairman at an election and is incapable of acting as a returning officer, and that if he so acts and is elected, his election is voidable on petition ad hoc. Rule IV, I have no doubt, was designed to carry out the English Law principle.

3. I have no doubt then that in this case Rule IV was broken, and that the lower court did not misinterpret the rules or the law relating to elections when it held so. It has been urged before me that this Rule IV seems to be in direct contravention of Section 23 of the Madras District Municipalities Act, Act V of 1920, which implies that at every meeting of the Council at which the Chairman is present, he shall preside. The difficulty is not met in my opinion by counter petitioners suggestion of interpreting "absence" as including "incapacity ". These two words are in fact used in Section 18 separately and as not implying each other, and if the incapacity of the Chairman to preside had been contemplated in Section 28 similar language to that used in Section 18 would have been employed. Section 30(4) has been obviously misread by the lower court and has no application to the present point. The difficulty however is resolved by holding that the word "chairman" in Section 28, includes "Chairman Delegate" in cases where there is no Vice Chairman, and in fact it is clear that one must hold so, otherwise the " Chairman Delegate " could not preside at meetings at all, a reductio ad abiurdum. The proper procedure then in cases like the present, is that the chairman, being incapacitated from fulfilling his duty of presiding at the election meeting, should under Section 18 appoint a chairman-delegate, who under Section 28, would preside at the meeting. Whether the salutary principle that a man should not be a Judge in his own cause is preserved by a procedure which allows him to appoint his own Judge in his cause may well be doubted, but that is, so far as I can see, the result of the present procedure as laid down in the Act and the statutory rules.

4. Be that as it may, the